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8. The Kungys Case
Juozas Kungys, unlike most of the post-Fedorenko defendants in Nazi denaturalization cases, so far defeated the Government's attempt to denaturalize him. Born in Reistru, Silales, Lithuania, in 1915, Kungys spent the war years in Lithuania, fled to Germany in 1944, entered the United States in 1948, and became a naturalized citizen in 1954. In 1981, the Government brought suit to denaturalize him. The Government charged that during the German occupation Kungys led armed Lithuanian auxiliaries as a force supporting the Germans in their repressive policies; specifically he led and participated in Kedainiai, Lithuania, during the late summer and fall of 1941, in the murder of Communist party functionaries as well as of approximately 2,000 Jewish men, women, and children. The Government further charged that Kungys had deceived American authorities about his wartime criminal activities by misrepresenting his place and date of birth and his marriage when he applied for a visa and for naturalization. Although he did not enter the United States under the DPA, this concealment and willful misrepresentation of a material fact mandated revocation of citizenship under section 340 (a) of the INA. Kungys contested the Government's charges. He claimed that he never aided the Germans or killed anyone and contended instead that he had been a member of the anti- German resistance.
Judge Debevoise of the United States District Court in New Jersey found for the defendant and against the Government.35 in a long and erudite opinion, Judge Debevoise discussed the historical background in overwhelming detail (including even Pearl Harbor and the campaigns in North Africa, Sicily, and Italy). Basing his argument on the testimony of the Government's expert witness, Professor Raul Hilberg, he accurately delineated the German campaign to exterminate the Jews in the Baltic states, specifically the activities of SS Einsatzgruppe A in the Baltic region and Einsatzkommando 3 in Lithuania. He cited, at great length, captured German documents, including the Jager Report36 about the killings in Lithuania. But while Judge Debevoise accepted the Government's evidence concerning German policies, including the killings of Jews and others by Germans and their Lithuanian associates, in general, he refused to accept its evidence concerning Kungys's participation.
The core of the Government's evidence linking Kungys to the killings of Kedainiai was the testimony of six witnesses videotaped in the Soviet Union. These witnesses included Kungys's sister-in-law and two personal friends from his days in Kedainiai. These witnesses described in detail, under direct and cross examination, the killings of Jews and Communists in Kedainiai in 1941. Judge Debevoise fully accepted their description of the killings: " . . . having seen and heard the videotapes of the depositions, I conclude that they are sufficiently reliable to establish that the five witnesses were present and that their testimony provides a general mosaic of the events. These witnesses also described how Kungys participated in these killings, personally and as a supervisor, and how he enriched himself from the belongings of the murdered Jews. But Judge Debevoise rejected this portion of their testimony:
The Lithuanian depositions will be admitted for the limited purpose of establishing the happening of the killings in Kedainiai in July and August in 1941. They will not be admitted as evidence that defendant participated in the killings.
Categorizing the Government's case as a "joint OSI-Soviet endeavor," Judge Debevoise polemicized that
the prosecution of this case results from an unusual cooperative effort of the Office of Special Investigations ("OSI") and the Soviet authorities. The Soviet authorities have provided documents from archives under their control and, most important, they have assembled, interrogated and produced for deposition the witnesses whose testimony is critical if the Government's principal charges are to be sustained.
Judge Debevoise argued that "the Soviet Union has a continuing, strong state interest in a finding that defendant was guilty of atrocious conduct while collaborating with German occupation forces," because they want to silence Baltic emigres who might endanger their control over the Baltic states. To accomplish this end, Judge Debevoise contended, they would use all means at their disposal. Citing the work of Professor Alan Dershowitz,37 Judge Debevoise announced that "the Soviet criminal and judicial system is structured to tailor evidence and produce results which will further the important political ends of the Soviet state at the expense, if need be, of justice in a particular case."
Convinced that the Justice Department and the Soviet authorities were colluding to advance the interests of the Soviet state, Judge Debevoise cast doubt on the validity of the Government's evidence. True, Judge Debevoise admitted that "no defense evidence established that any document supplied by the Soviet Union in any denaturalization case was false or that any witness whose testimony was taken in the Soviet Union was subject to improper pressure or other influences." But he explained the absence of such evidence with the observation that "no defendant in any such case has had the opportunity to investigate the circumstances under which the KGB and procurator prepared the witness for interrogation by the OSI." Of course he did not mention that numerous other federal judges accepted such evidence in denaturalization cases without alleging KGB subversion.
Having launched his general attack on the witness testimony taken in the Soviet Union, Judge Debevoise dissected this testimony in detail to prove his contention that it was unreliable. He found that the Soviet procurator's presiding at the taking of the depositions intimidated the witnesses. He argued that the Soviet translator did not provide an accurate translation. He concluded that the Soviet procurator, the Soviet translator, and the OSI attorney all inhibited crossexamination by the defense attorney. He questioned the language the Government's witnesses used, and ascribed it to Soviet prompting; he found it "inconceivable" that the witnesses would use terms like "Hitlerite soldiers" and concluded that such terms were the invention of Soviet prosecutors.
Central to Judge Debevoise's argument were earlier depositions by the Government's witnesses in the Soviet Union. In 1977 the witnesses were deposed on the Kungys case and the record was available to the court. In their videotaped testimony taken in Lithuania and presented by the Government in open court, the witnesses on several occasions gave evidence less damaging to Kungys than they had provided in their 1977 depositions. But when the presiding Soviet procurator confronted them with their 1977 statements, the witnesses changed their testimony to include recollections more damaging to Kungys. From this Judge Debevoise concluded that their first, less damaging recollections were true and that the 1977 statements were due solely to their fear of Soviet reprisals. In addition, these witnesses had already given evidence concerning the Kedainiai killings before 1977 (even as early as the late 1940s), but these transcripts were not available to the court. Judge Debevoise argued that a comparison of the 1977 depositions with these earlier testimonies would prove whether these witnesses had been intimidated. And, although neither the court nor the defense had requested these earlier transcripts, Judge Debevoise reprimanded the Government for not producing them.
For all these reasons, Judge Debevoise disallowed the testimony of the Soviet witnesses, and therefore found that the Government's charges concerning Kungys's participation in the Kedainiai killings were not proven. Although Kungys had lied about his date and place of birth and about his wartime residence (the Government withdrew the charge that he had also falsified his marriage record), Judge Debevoise concluded that these misrepresentations were not material under the standards imposed by Fedorenko or under the more stringent standards imposed by Chaunt.38 In other words, Kungys's misrepresentations did not conceal any information that would have prevented him from entering the United States; or, phrased another way, if he had told the truth, he would still have been able to obtain his visa and naturalization. This leaves this question unanswered: why did Kungys lie? He argued that he had concealed his true date and place of birth during the German occupation because it would have revealed his purported underground activity against the Germans. Judge Debevoise rejected this explanation. The Government argued that Kungys lied to prevent discovery of his crimes in Kedainiai. As we have seen, Judge Debevoise rejected this explanation as well. This left Judge Debevoise without any explanation whatever:
I cannot understand what benefit defendant expected to achieve by placing his birth in Kaunas rather than Reistru and by dating his birth October 4, 1913 rather than September 21, 1915.
The Government appealed the decision to the United States Court of Appeals for the Third Circuit. In a detailed and cogent brief, submitted on 6 March 1984, the Government asked the appeals court "to reverse the judgment of the district court."
In its brief the Government reviewed the charges against Kungys and argued that his misrepresentations mandated denaturalization. Even nonmaterial misrepresentations showed that he lacked the good moral character required for citizenship; testimony by consular and immigration officials showed that his misrepresentations were also material under the Chaunt test. The refusal of the district court to apply the law was an error.
The bulk of the Government's brief, however, dealt with the proposition that Judge Debevoise "clearly erred in not finding that Kungys had assisted in the persecution and murder of innocent civilians during World War II." The most impressive piece of evidence produced by the Government, and disregarded by Judge Debevoise, concerned a list of persons, kept in the office of the German commander, who had served together with Kungys in the detachment involved with the Kedainiai killings. The Government reconstructed this list from Soviet affidavits. In March 1981, Government attorneys read the list of 44 names to Kungys, without telling him how the list was compiled. "Under oath, Kungys swore that he recognized only two of the forty-four names." But later he wrote a letter to a prospective defense witness discussing this list; at the trial he admitted the authenticity of his letter. There Kungys wrote:
They presented before me the longest list of Riflemen's Association members from the commandant's office and kept asking me whom I knew. I don't know why our people are so unwilling to help one another. Just look how the descendants of Abraham are doing it.
The Government reserved its strongest arguments against the district court's refusal to admit the videotaped testimony of Soviet witnesses as evidence of Kungys's crimes, refuting Judge Debevoise's arguments point by point:
1) Contrary to the conclusions reached by Judge Debevoise, "there is no evidence in this record that the Soviet Union has any specific interest whatsoever in defendant." In fact, it was evidence supplied by the Soviets that forced the Government to drop the charge that Kungys had falsified his marriage record. Further, there was no reason for a specific Soviet campaign against Kungys. The defendant had not been a Lithuanian nationalist activist and had never been involved in anti-Soviet political activities. His wife even received a Soviet visa to visit Lithuania, and his sister-in-law, one of the Soviet witnesses videotaped by OSI, was permitted to visit the United States for extended periods in 1972 and 1978.
2) Contrary to the supposition advanced by Judge Debevoise that the Soviets fabricate evidence and that their witnesses are thus per se untrustworthy, numerous courts in the United States and in West Germany have accepted such evidence in trials dealing with Nazi criminals. Of course, such testimony and documents must be tested against other available evidence; but they cannot be rejected simply because their origin is viewed with suspicion. Although the Soviet judicial system is coercive, there is no evidence whatever that the Soviets have at any time provided false testimony or documents against Nazi criminals for use in American or West German courts:
If the propaganda value of these cases is so great to the Soviet Union, as defendant contends, then it would not risk discrediting its efforts by submitting fabricated evidence to a western court which is inevitably doomed to exposure.
3) Contrary to Judge Debevoise's finding, the Soviet procurator did not inhibit the defense. The Government pointed out as follows:
The participation of a foreign official, such as the Soviet procurator, in the depositions does not, in itself, constitute a fatal departure from acceptable procedures.... In virtually all civil law countries, depositions as we know them are not allowed. Whenever a witness' testimony is taken, a foreign government official must preside.39
The record shows that the procurator did not interfere with the cross- examination of witnesses; she "rarely interrupted" the defense counsel "during the many hours of deposition." Moreover, "the depositions demonstrate the independence of the witnesses and the fact that they were not susceptible to pressure from counsel-or from the procurator."
4) Contrary to Judge Debevoise's finding, the Soviet interpreter did not mistranslate the witness's testimony. The defense witness who testified on the issue of translation, and whose testimony the district court found credible, was not a trained interpreter; she had trained in the Lithuanian language at "Saturday school" in New York as a child and was unfamiliar with numerous Lithuanian dialects. In any event, the only discrepancies she discovered in the translation concerned the correct rendering of colloquialisms or involved the differences between "car" and "truck" or "interrogated" and "examined." Such insignificant errors, the Government argued, should not invalidate important testimony:
Plainly, minor translation errors which may appear in the testimony of witnesses who have no personal knowledge of Kungys is an inadequate record upon which to exclude the unchallenged testimony of eyewitnesses who knew Kungys well and who described his role in the massacres.
5) Contrary to Judge Debevoise's assumptions, the differences between the 1977 and 1982 testimonies were not due to Soviet fabrications. The Government argued that in most instances the 1977 and the 1982 testimonies agreed. They differed in some key points because in 1982 these witnesses, relatives and friends of Kungys, "resisted giving testimony they believed was harmful to defendant"; they did not differ because the Soviets had fabricated the 1977 record. His sister-in-law, one of the witnesses, had "visited Kungys at his home after the commencement of the I.N.S. investigation into his alleged activities at Kedainiai, and they discussed those charges." Later she discussed all this with other Soviet witnesses who had been friends of Kungys. Evidence thus indicated that the witnesses tried to aid Kungys in their testimony; evidence does not indicate that the Soviets fabricated testimonies.
6) Contrary to Judge Debevoise's finding, the Soviet witnesses did not use language not commonly used in the Soviet Union. Their use of terms like "Hitlerite" did not prove that their testimony was invented by Soviet interrogators; such language is common usage in the U.S.S.R. The Government cited Allied pronouncements during World War II-including the Moscow Declaration of 1943 (signed by Roosevelt, Churchill, and Stalin) and a speech by Anthony Eden in the House of Commons-using identical language.
7) Judge Debevoise refused to admit Government evidence that would have supported the credibility of the Soviet testimonies. Judge Debevoise found that the 1977 protocols were Soviet fabrications, but he excluded the actual protocols when the Government wanted to introduce them. Judge Debevoise also excluded the evidence of an Israeli witness who testified that in 1945 "townspeople of Kedainiaiincluding a now-deceased Jewish survivor of the killings-identified Kungys as a participant in those killings." Although this is hearsay evidence that cannot prove Kungys's guilt,
the [Israeli] statement indicates that Kungys's involvement in the Kedainiai murders was a subject of discussion (whether rightly or wrongly) as long ago as 1945. This means that defendant's argument that the KGB orchestrated the accusation against him requires a belief that the Soviet secret police commenced this putative disinformation campaign in 1945.
The Government argued that this refusal to admit supporting evidence to prove the reliability of the Soviet testimonies (as well as other Soviet documents showing Kungys's participation in the killings) significantly influenced the outcome of the trial:
We believe that the court's refusal to consider the Soviet and Israeli affidavits for the limited purpose for which they were offered, especially after the court considered other hearsay evidence submitted by defendant, was reversible error.40
9. The Sprogis Case
Elmars Sprogis was born in Latvia in 1914, served during the German occupation as a senior Latvian police officer in Gulbene and Madona, immigrated to the United States as a displaced person in 1950, and was naturalized in 1962. In 1982 the Government sought to denaturalize him. Unlike all other post-Fedorenko defendants in Nazi denaturalization cases, Sprogis defeated the Government's attempt to strip him of his citizenship.
Although Sprogis had not provided false personal data on his visa and naturalization applications, the Government charged that he had illegally procured his naturalization because he had been ineligible for a visa under sections 10 and 13 of the Displaced Persons Act and section 2(a) of the IRO Constitution. But Judge Frank X. Altimari of the United States District Court for the Eastern District of New York at Uniondale, ruled against the Government.41 Unlike Judge Debevoise in the Kungys case, Judge Altimari did not launch a full-fledged attack on the Soviet judicial system. But like Judge Debevoise before him, he did not find credible the essential videotaped testimony of Soviet witnesses.
The Government's case rested on the assertion that Sprogis had persecuted Jews and others and had therefore been ineligible for a visa as a displaced person. To support this assertion the Government introduced three types of evidence. First, the Government's expert witness, Professor Raul Hilberg, delineated how the Germans had exterminated the Latvian Jews and how the Latvian police had aided in these murders. Second, the Government introduced documents, signed or handwritten by Sprogis, showing that the defendant as a senior police officer itemized the currency and belongings confiscated from Jews and that he paid money to local farmers for transporting the Jews to the local jail. Third, the Government introduced the testimony of two witnesses, videotaped in the Soviet Union, that linked Sprogis directly to the arrest of Jews, the seizure of Jewish property, and the killing of Jews.
Judge Altimari accepted Professor Hilberg's testimony as valuable and informative. But as it obviously did not deal with Sprogis personally, he concluded that it did not support the Government's case. Judge Altimari also accepted the documents introduced by the Government after Sprogis had verified his signature and handwriting. However, he did not find that these documents supported the Government's contention that Sprogis had personally persecuted or assisted in the persecution of civilians. After a long discourse on the meaning of "persecution" and "assisting," he found that Sprogis's paperwork involving the incarceration and despoilment of the Jews was only a "ministerial act" that did not prove the defendant's assistance in persecution.
The Soviet witnesses, however, could not be discounted in the same manner; their testimony described Sprogis's personal participation in theft and murder. Judge Altimari simply found them untrustworthy. Unlike Judge Debevoise in the Kungys case, he did not accept the defense argument that Soviet testimony is inherently not credible. However, he found that the testimony of these witnesses, based on their demeanor on videotape, reflected individuals "testifying under coercive or, possibly, discomforting conditions." Refusing to "venture into the world of psychology or interpersonal relationship," he left unanswered whether their untrustworthy appearance was due to "coercion, discomfort, fear, old age, or other factors."
Judge Altimari thus concluded that Sprogis was present during the arrest, despoilment, and murder of Jewish civilians, but that he only watched these criminal proceedings; in other words, the passive participation of a uniformed and armed police officer as part of his official duties in the despoilment and murder of civilians did not constitute a disqualification for immigration and naturalization:
... the Court does not believe that Congress intended to exclude from citizenship persons who were present when others were persecuted. We fear that after the holocaust and the Second World War, there would have been very few displaced persons eligible for citizenship if Congress so intended.
Judge Altimari thus found for the defendant, Elmars Sprogis:
In finding in favor of Elmars Sprogis, we say no more than that at the trial of this action, the Government, perhaps due to the passage of time and other factors beyond its control, was unable to meet its burden of proof which required it to establish by clear, convincing and unequivocal evidence which did not leave the issue in doubt, that Elmars Sprogis assisted in the persecution of Jewish or other persons prior to his admission to this country.
The United States Court of Appeals for the Second Circuit affirmed the decision of the district court.42 For the first time the OSI lost at both the trial and appellate levels. Sprogis thus escaped denaturalization.
The majority of the appeals court-judges Lumbard and Cardamone-agreed with District Judge Altimari that the Government had not met its heavy burden of proof. The majority found that the Government had not proved that Sprogis had persecuted Jews and other civilians. District Judge Altimari had discounted the evidence of the witnesses who testified on videotape in the Soviet Union as too untrustworthy to deserve consideration, and the Government had not disputed this finding on appeal. The district court had also been convinced by Sprogis's testimony in court that he was telling the truth and that reversals in his testimony could be attributed to a lapse of memory. The appeals court majority, finding it extraordinarily difficult to unravel the truth after 40 years, accepted the district judge's assessment of Sprogis's testimony: "Thus, the impression that he, as a witness, made on the district judge, as trier of the facts, was critical. In a case of this sort, we owe special deference to the trial judge's conclusions about the weight of the evidence."
At issue was the significance of Sprogis's actions on 19 July 1941, when, as deputy police chief in Gulbene, he paid farmers for transporting nine Jews to jail, supervised the detention of these Jews until their removal for execution, and handled the disposition of their confiscated belongings. The Government contended that these acts must be considered "persecution" of civilians within the meaning of the DPA. The appeals court majority, however, found that "these were not acts of oppression," and that, therefore, "they do not amount to the kind of active assistance in persecution which the DPA condemns." In reaching this decision, the court relied, however, only on section 2 of the DPA, disregarding section 13 of the DPA, which did deny DP status solely on the basis of membership.
This decision means that mere membership in an organization that aided the Nazis in their persecution of civilians is not sufficient to denaturalize anyone. This is not a novel interpretation of the law. After all, Sprogis did not hide his membership in the native police of his country when he applied for a visa, and he obtained both a visa and citizenship even though this fact was known to immigration and naturalization officials.
This decision goes further. It argues that "persecution" must contain an active ingredient. The appeals court majority reviewed the findings in Fedorenko and other denaturalization decisions involving Nazi ciminals, and held that Sprogis's acts were not comparable to those considered persecution by other courts. The court majority found that Sprogis's acts, unlike those of other Nazi criminals who had been denaturalized, were only "ministerial tasks," a form of "passive accommodation." As an example of acts that constituted persecution, the court pointed to the Supreme Court decision in Fedorenko. There the defendant had guarded civilians in a camp where they were murdered and had thus prevented their escape from certain death. The court of appeals does not make clear how this behavior differed from the "ministerial tasks" performed by Sprogis. The nine Jews were detained by Sprogis and his subordinates; the presence of Sprogis and his associates-all armed-prevented these Jews from escaping certain death. Although these Jews were not killed in Sprogis's jail, Sprogis knew, and so admitted, that they would be taken from his jail to a place of execution.
Judge Mansfield in a separate concurring opinion did not find Sprogis's testimony convincing. Pointing out that Sprogis had lied about his activities on 19 July 1941 until the introduction of written documentation forced him to admit the truth, Judge Mansfield did not believe in the defendant's supposed lapse of memory; in any event, Sprogis could have revealed the truth at the time he received his visa, before his memory faded. Judge Mansfield simply did not believe Sprogis and found the trial judge and the appeals court majority "extraordinarily charitable."
Judge Mansfield argued that had Sprogis revealed everything at the time he applied for a visa, such "disclosure would have barred his entry." According to Fedorenko, this meant that Sprogis had concealed a material fact and had thus been ineligible for a visa; his citizenship thus had been illegally procured, and he should therefore be denaturalized. But Judge Mansfield did not reach this conclusion. Instead, he concurred, and without further explanations found: "I am forced by the district judge's assessment of credibility and the high proof standards required of the government . . . to concur in our holding ......
10. The Kowalchuk Case
Serge Kowalchuk, also known as Serhij Kowalczuk, was bom in Kremianec, Poland, in 1920. During World War II, he served as a member of the Ukrainian militia (Schutzmannschaft) in Lubomyl during the Nazi occupation. He entered the United States as a displaced person in 1950 and was naturalized in 1960. In 1981, the Government sued to revoke his citizenship and in 1983 Judge Fullam of the United States District Court for the Eastern District of Pennsylvania denaturalized him.43
The Government charged that Kowalchuk occupied a senior position with the Ukrainian Schutzmannschaft in Lubomyl and that this Ukrainian force actively supported the German SS in persecuting and finally killing the Jews of that Ukrainian town. It also charged that Kowalchuk personally committed atrocities. The Government further charged that Kowalchuk concealed his residence in Lubomyl during the war and his membership in the Schutzmannschaft when he applied for DP status and his United States visa.
Judge Fullam did not accept the validity of all of the Government's charges. Noting that "unlike virtually every other reported denaturalization case, there is in this case not one scrap of documentary evidence relating to the pertinent events," he found that a determination of what actually occurred was unusually difficult. Conclusions had to be based entirely on the testimony of witnesses, "uncoffoborated by any documentary evidence." The witnesses for the Government accused Kowalchuk of an active role and personal participation in the crimes of the Schutzmannschaft. Two Jewish survivors testified on videotape in Israel, and one Jewish survivor residing in the United States testified in court. A number of witnesses who had served with Kowalchuk in the Schutzmannschaft testified on videotape in the Soviet Union. The defense, in turn, produced witnesses who testified that Kowalchuk had never committed atrocities. Judge Fullam found them all equally persuasive:
None of the important witnesses for either side is fluent in the English language. Many testified through interpreters, and all would have benefitted from such assistance. And many testified by way of videotape depositions. It is extremely difficult to reach a confident conclusion, on the basis of witness demeanor, concerning the accuracy and reliability of testimony presented on videotape through an interpreter.... With relatively minor exceptions, there is nothing in the demeanor of any of the witnesses that would cause me to believe, with any degree of confidence, that any of the witnesses for either side was consciously lying.
Analyzing these contradictory but equally persuasive testimonies, Judge Fullam concluded that "the evidence is plainly insufficient to constitute clear and convincing proof' that Kowalchuk personally committed atrocities. But Judge Fulham also concluded that "the Lubomyl Schutzmannschaft regularly and routinely" enforced the severe repressive measures imposed by the Germans on the Jewish population and that the defendant knew this.
In his discussion of the legal issues, Judge Fullam argued that "it is not at all clear that, in 1949, membership in or employment by the Schutzmannschaft at Lubomyl would have precluded the issuance of a visa." He further argued that Kowalchuk did not knowingly provide false information and that it is doubtful that his misrepresentation amounted to willful concealment. Nevertheless, he found that the precedent of Fedorenko demanded denaturalization because sections 2(a) and 2(b) of the IRO Constitution as incorporated into section 2 of the DPA disqualified those who "assisted the enemy in persecuting civil populations" and/or "voluntarily assisted the enemy forces." The evidence had shown that the Lubomyl Ukrainian militia, acting alone or in concert with the Germans, persecuted and killed Jews and also assisted the enemy forces in other ways. Kowalchuk had voluntarily joined this Ukrainian militia and had occupied a responsible position in it. He had, therefore, been ineligible for a visa. His citizenship had thus been illegally procured and had to be revoked. Judge Fullam's ruling was unprecedented. He found Kowalchuk guilty because of his membership in a criminal organization and not for personal participation in crimes. His ruling no doubt correctly reflects the original intent of the IRO Constitution and the DPA.
Kowalchuk appealed Judge Fullam's decision to the United States Court of Appeals for the Third Circuit. In a 2 to 1 decision, a 3-judge panel of the appeals court overruled the district court in favor of the defendant.44 For the first time, an appeals court reversed a ruling favorable to the Government in a denaturalization case involving a Nazi criminal. The appeals court majority- Chief Judge Aldisert and Circuit Judge Weiss-disagreed with the lower court's finding of fact and application of the law. Although it agreed that Kowalchuk had voluntarily joined the Lubomyl Schutzmannschaft, the majority found that the defendant had not voluntarily assisted the enemy. It held that there was "substantial question" whether membership alone, even though not coerced, was sufficient to constitute voluntary assistance to the enemy. Instead, it imposed a new and stricter standard demanding "intent-to-aid and purposefulness-of-assistance."
The majority thus found that the fact of membership alone, had it been revealed at the time of visa application, would not have justified legal exclusion. Rejecting the relevance of Fedorenko, it imposed a narrow and strict interpretation of materiality. Using Chaunt45 and an earlier third circuit court decision known as Riela, it argued that a misrepresentation was only material if its revelation would automatically have resulted in a refusal of a visa or naturalization. This interpretation of Chaunt was at variance with the interpretation of most circuit courts of appeals, which had ruled that, under the second prong of Chaunt, a misrepresentation was material if revelation would have led to an investigation by the authorities.
In his dissent, Circuit Judge Rosenn totally disagreed with the majority opinion. He found its application of Chaunt and Riela incorrect. He argued that under any test of materiality imposed by these two precedents, Kowalchuk had willfully concealed and misrepresented a material fact when he lied about his service in the Ukrainian militia on his visa application.
The Government requested a rehearing by the full appeals court. In its brief, the Government, following the argument of Judge Rosenn contended that the panel majority incorrectly applied Chaunt, incorrectly used Riela, and imposed standards at variance with congressional intent. The Government argued that the majority ruling was inconsistent with earlier rulings of the third circuit, other circuit courts, and the Supreme Court. And considering the importance of this issue, the OSI attorney requested a decision from the entire court:
I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to decisions of the United States Court of Appeals for the Third Circuit and the Supreme Court of the United States, and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this court ... and that this appeal involves a question of exceptional importance, to wit, the standard of materiality for misrepresentations made in visa and citizenship applications.
The court of appeals vacated the decision of the three-judge appellate panel and granted the Government's petition for a rehearing by the full court. One year after the panel reversed the district court's decision, the full court upheld the lower court's denaturalization of Kowalchuk.46 Judge Rosenn the dissenter on the three-judge panel, spoke for the eight-judge majority of the full court. The four-judge minority spoke through Judge Aldisert who had written the majority opinion for the panel.
Although the full court found it unnecessary to consider the question of whether Kowalchuk "assisted in the persecution of civilian populations," it concluded that his voluntary membership in the Schutzmannschaft constituted "voluntary assistance to the enemy." Unlike the three-judge panel which had decided that such membership alone would not have warranted denial of a visa, the full court accepted as credible the testimony of officials involved in the postwar refugee program and concluded that "disclosure of the true facts concerning the defendant's wartime activities would have made him ineligible for a visa." Kowalchuk's misrepresentations about his wartime activities were therefore material under the first prong of Chaunt as well as under Fedorenko because if he "had revealed these facts about membership on December 29, 1949, the day he obtained his visa, those facts would have warranted denial of his visa and thereby precluded him from obtaining citizenship." The full court thus held that the record compiled at the lower court level fully supported the conclusion that Kowalchuk had voluntarily assisted enemy forces and that his willful misrepresentations were material.
11. The Schellong Case
Conrad Schellong posed problems for the Office of Special Investigations different from those presented by most denaturalized Nazi criminals. The majority of those tried by the Government were East Europeans who entered the United States under the Displaced Persons Act. In contrast, Schellong was a German national who entered the United States under the Immigration and Nationality Act of 1952.47
Born in Dresden, Germany, in 1910, Schellong belonged to the radical right Wehrzwolf from 1928 to 1932, and joined the Nazi party as member number 1,428,412 on 1 December 1932. From June to November 1932 he served in the brown shirt Sturmabteilung (SA), and on 28 December 1932 he joined the black shirt Schutzstaftel (SS) as a recruit with the membership number 135,553. In the SS he served from 1933 to 1941 as a member and officer with the guard detachments at the concentration camps of Sachsenburg (1933- 1936) and Dachau (1936-1941), rising from private in 1933 to captain (Haupt sturmfuhrer) in 1941. In 1941 he was transferred to the Waffen SS; by the end of the war he had advanced to the rank of lieutenant-colonel (Obersturmbannfurer).48
In 1956 Schellong sought admission to the United States. In his "Application for Immigrant Visa and Alien Registration" (Form FS- 256a),49 filed with the U.S. Consulate in Hamburg, Germany, in 1956, Schellong answered question 26 concerning his previous residence as follows:
Birth-1911, Dresden, Germany; 1911-1934, Leipzig, Germany; 1934-1939, German Waffen SS; 1939-1945, Waffen SS during the war, . . .
This answer contained a number of misstatements. The statement "1934- 1939, German Waffen SS" was an inappropriate answer because it did not reveal his actual place of residence; it was no doubt designed to hide the fact that he was stationed during those years at two concentration camps, Sachsenburg and Dachau. Although the name Sachsenburg, an early so- called wild camp familiar to few outsiders, might have passed muster with United States officials, the name of the infamous Dachau would have alerted them. In addition, by listing the Waffen SS, Schellong implied that he had only been a regular soldier; but this branch of the SS had not existed during the 1930s. The predecessor of the Waffen SS during the pre-war years, the SS-Verfugungstruppe, had not been a fighting unit, but had served as a reserve force in case of civil war; in any event, Schellong had not belonged to it, but to the SS death's head units guarding the concentration camps.50 The statement "1939-1945, Waffen SS during the war" was slightly more accurate; in wartime a military unit could be considered a place of residence. But this designation did not apply for the years 1939-1941. Although the concentration camp guards were technically transferred to the Waffen SS Reserve at the commencement of the war, Schellong remained at Dachau until his transfer to active service in the Waffen SS on 24 September 1941.51 On the basis of these misstatements, United States consular officials, who did not consider service with the Waffen SS a form of disqualification,52 issued a visa, and Schellong entered the United States in 1957.
In 1962 Schellong applied for citizenship. In his "Application to File Petition for Naturalization" (INS Form N-400), Schellong had to list all previous memberships. For the years of the Third Reich, he listed the following three:
Although Schellong admitted early membership in the Nazi party and the SS,53 he repeated his misstatements from the visa application concerning service at Sachsenburg and Dachau. But unlike the consular officials, the naturalization examiner asked for elaboration; in reply Schellong provided the following sworn written statement:
In the years 1927-1933: the economy of Germany went more and more down. The most of the people were out of work. There were only 2 partys [sic] which could come on the power: the Communist party and the N.S.D.A.P. I decided with millions of others for the N.S.D.A.P. I do not believe in the supreme blood of the German race.
The Allgermeine SS were a part organization of the N.S.D.A.P. There members had to march and to protect the speaker by the vote campaign. Because I was strong and healthy they asked me to join and I did. I hath no rang [sic: rank].
The Waffen SS was a part of the German Army. I like to be soldier and I signed in 1934. 1 became in all the years in peace and wartime Lt. Colonel. I was highest decorated. I fought only in East against Russia. I had never to do any service in an concentration camp and never arrest one man in this matter. I was only soldier.54
This statement is a classic example of a widespread rationalization for membership in the criminal organizations of the Third Reich. He joined the Nazis because there was unemployment; anyhow, the only other choice was the Communists. The General SS only served as a cheering section during election campaigns; anyhow, he was only a common member. The Waffen SS was just like any other unit in the German army; anyhow, he only fought against the Russians. Schellong then added additional comments he believed the examiner wanted to hear: he was never a racist; he never served in a concentration camp; he never arrested anyone; and he "was only soldier." The examiner accepted it all at face value, and Schellong became a citizen of the United States in July 1962.
In 1981 the Government instituted denaturalization proceedings against Schellong, and in 1982 Judge Decker of the United States District Court, Northern District of Illinois, Eastern Division, revoked his citizenship.55
The facts were not complicated. The Government charged and the court accepted that Schellong had lied on his application for a visa and for naturalization. The law, however, was more complicated. Section 340(a) of the INA mandated revocation of citizenship if it was "procured by concealment of a material fact or by willful misrepresentation." The question, however, was whether the information Schellong had concealed was a "material" fact.56 In denaturalization cases involving the Displaced Persons Act the answer was simple. Concealment of such facts- guard duty in a concentration campwas material because the DPA excluded individuals who persecuted civilians. In other words, service in a concentration camp involved the persecution of civilians and concealment of such service was therefore "material." The INA, under which Schellong entered the United States and became a citizen, was not couched in the exclusionary language of the Displaced Persons Act. Thus membership in the Nazi party and the SS, which would probably have excluded applicants under the DPA-or would at least have triggered an investigationdid not result in the denial of a visa or naturalization or lead to an investigation in the case of Schellong.
The district court used the Supreme Court opinion in Fedorenko to determine materiality:
At the very least, a misrepresentation must be considered material if disclosure of the true facts would have made the applicant ineligible for a visa.
But while the immigration law excluded those who supported totalitarian regimes, nothing in the language of the INA specifically mandated denial of a visa or naturalization to anyone who served as a guard in a concentration camp. If Schellong had revealed service with the death's head units at Sachsenburg and Dachau, as he revealed membership in the Nazi party and the Waffen SS, the INA would not have mandated exclusion. Nevertheless, the district court found that Schellong had concealed a material fact within the meaning of Fedorenko. The court based this conclusion on the testimony of two Government witnesses. First, Lewis Donald junior, a former consular official at Hamburg, "testified that visa applications were routinely denied whenever they disclosed service in a concentration camp." Second, Judge Frank M. Siracusa, Schellong's former naturalization examiner, testified that had he known about Schellong's concentration camp service his conclusion at the time "would be to deny the application." The court opinion does not indicate on what basis Lewis junior and Frank Siracusa would have denied Schellong's applications; their testimony as cited in the court opinion does not clarify why service with the death's head units was considered disqualifying while service with the Waffen SS did not impose any limitations.
Schellong appealed to the United States Court of Appeals for the Seventh Circuit. The appeals court, citing the testimony of the Government's expert witness, Dr. Charles Sydnor, the author of a history of the Waffen SS division recruited from the death's head units,57 concluded that Schellong had willfully misrepresented his service in the SS. Although the court discounted Schellong's misrepresentation on the visa application, where he was never asked to explain his SS service, it placed great weight on his misrepresentation on his naturalization application because he specifically lied about his service in a sworn written statement explaining this service. Discounting Schellong's later justification as a "semantics game," the appeals court upheld the revocation of Schellong's citizenship.58
In 1981 the Office of Special Investigations won the landmark Fedorenko case in the Supreme Court. Since then the OSI has moved rapidly to denaturalize large numbers of Nazi criminals residing in the United States. The OSI attorneys have become proficient in preparing and litigating their cases. Using a number of expert witnesses-Hilberg, Scheffler, Sydnor, and others- they have been able to present to the federal courts a clear and convincing picture of events in Nazi-occupied Europe. Collecting large numbers of German documents from Soviet and Western archives, they have been able to provide documentary evidence proving the personal culpability of the defendants. Finding witnesses from the United States, Canada, Israel, Germany, and Eastern Europe to give testimony-often on videotapes taken abroad-they have been able to prove the personal participation of defendants in mass murder. In most cases litigated since Fedorenko, the federal district and appeals courts have ruled in favor of the Government. In a few cases-Trifa59 and Von Bolshwing60 - defendants renounced their citizenship because they were afraid to go to trial. However, there have been setbacks. Two district court judges-in the Kungys and Sprogis cases-ruled against the Government. Both judges refused to accept documents and testimony from the Soviet Union, thus de facto upholding the usual insistence of all defendants that this incriminating evidence was a product of OSI-KGB collusion. On appeal, the Government won a reversal in Kungys, but lost in Sprogis. But these setbacks have been exceptions: the principle that Nazi criminals who entered the United States by concealing their criminal acts have no right to American citizenship has been accepted by all federal courts.
Denaturalization does not automatically lead to the departure of the Nazi criminal from the United States. Although a number of denaturalized citizens or resident aliens accused of Nazi crimes have voluntarily left the United States,61 only one Nazi criminal has been extradited62 and only one has been deported against his will.63 Deportation of denaturalized citizens or resident aliens is at least as cumbersome as denaturalization. Although the OSI has commenced litigation in large numbers of deportation proceedings, few favorable final decisions have so far been handed down. The same applies to extradition. In only two current cases have foreign governments requested the extradition of Nazi criminals: Yugoslavia has requested Andrija Artukovic and Israel has requested John Demjanjuk. The OSI has been victorious in the first rounds of these extradition proceedings, but litigation continues at this time.64
36. SS-Standartenfuhrer (Colonel) Jager was the commander of SS-Einsatzkommando 3 in Lithuania. A facsimile of his report, dated 1 Dec. 1941 and sent to SS- Brigadefuhrer (Brigadier General) Dr. Stahlecker of SS-Einsatzgruppe A, entitled "Gesamtaufstellung der im Bereich des EK.3 bis zum 1. Dez. 1941 durchgefuhrten Exekutionen," can be found in the unpaginated appendix of Adalbert Ruckerl, ed., NS-Prozesse (Karlsruhe, 1972).
39. This also applies to the United States when foreign governments depose American witnesses. Thus when West German courts interview American witnesses in Nazi war crimes trials at West German consulates in the United States, a member of the American bar must preside.
40. Brief for the United States, United States v. Kungys, No. 83-5884 (3rd Cir. 1984). After this article was completed and typeset, the Government won its case on appeal. The U.S. Court of Appeals for the Third Circuit reversed Judge Debevoise, holding that Kungys's falsification of date and place of birth were material misrepresentations under the second prong of Chaunt (see Friedlander and McCarrick in SWC Annual 2: 75-77 and below, note 45). Although the appeals court did not deal with the evidentiary value of the testimony deposed in the Soviet Union, the court held: ". . . we reject the suggestion that all depositions taken in the Soviet Union should be automatically excluded from evidence." United States v. Kungys, No. 83-5884 (3rd Cir. 20 June 1986).
44. United States v. Kowalchuk, 744 F.2d 301 (3rd Cir. 1984), published in advance sheet at this citation, was withdrawn from the bound volume because a rehearing en banc, i.e., by the full court of appeals, was granted and the court of appeals vacated the decision of the court of appeals panel.
45. A 1960 decision of the Supreme Court, known as Chaunt, governed materiality in denaturalization cases until it was superseded or made irrelevant in Nazi cases by the Supreme Court's opinion in Fedorenko. Chaunt introduced two tests to determine the materiality of a misrepresentation. Under the first test (or prong), a misrepresentation was material if the revelation of the truth would have automatically disqualified the applicant. Under the second test (or prong), a misrepresentation was material if revelation of the truth would have led to an investigation by the American authorities that would have or might have produced information to disqualify the applicant. Courts have differed over the meaning of this second prong and especially the meaning of would or might. See Friedlander and McCarrick in SWC Annual 2: 75-77.
47. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 codified at 8 U.S.C., sec. 1101-1557. Schellong could not be admitted under the DPA because the IRO specifically excluded native and ethnic Germans from DP status.
50. For a delineation of SS branches, see Henry Friedlander, "The SS and Police," in Genocide: Critical Issues of the Holocaust, ed. Alex Grobman, Daniel Landes, and Sybil Milton (Los Angeles and New York, 1983), pp. 150ff.
51. Schellong's Dienstlaufbahn (Berlin Document Center, Dossier Schellong; English transl. Government Exhibit, Group D, 26a) lists him as a transfer to the SS Infantry Reserve Battalion on 24 Sept. 1941. Until that date he is still listed as stationed at Dachau. The district court concluded, however, possibly on the basis of additional information, that he was transferred from Dachau as early as 1939. United States v. Schellong, 547 F. Supp. 569, 574 (N.D. 111. 1982).
52. Like the consular officials and Schellong himself, who considered the Waffen SS a benign organization, President Ronald Reagan, before and during his visit to Bitburg, made a distinction between the Waffen SS and other SS branches.
59. Valerian Trifa, Archbishop of the Romanian-American Orthodox Episcopate Church, was a leader of the Romanian fascist Iron Guard who served as editor of an antisernitic newspaper and who instigated pogroms. He entered the United States in 1950 and was naturalized in 1957. He consented to his denaturalization in 1980. United States v. Trifa, 662 F.2d 447 (6th Cir. 1981). After that Trifa left the United States for Portugal and places unknown.
60. Otto Albrecht Alfred Von Bolschwing, who entered the United States in 1954 and was naturalized in 1959, was a German national who occupied a senior position in the SS Security Service (SD). In 1981, when Von BoIschwing was 71 years old and seriously ill, he agreed to a consent judgment denaturalizing him; in turn the OSI agreed to a settlement that would permit him to remain in the United States as long as he remained in poor health. United States v. Von BoIschwing, Consent Judgment, Civil No. S-81-308 MLS (E.D. Calif. 18 Dec. 1981) Settlement Agreement, 18 Dec. 1981. Von BoIschwing died in California in 1982.
62. Hermine Braunsteiner Ryan, a former female SS guard at the concentration and extermination camp at Lublin-Maidanek, was extradited to West Germany in 1973. See Friedlander and McCarrick in SWC Annual 2:67. After a trial lasting from 1975 until 1981, the district court in Dusseldorf, West Germany, sentenced her to life in prison. See Landgericht (Dusseldorf Urteil gegen Hermann Hackmann u. A., 30 June 1981, file no. 8 Ks 1/75, pp. 10, 199-230, 778-79.
63. Feodor Fedorenko was finally deported against his will to the Soviet Union on 21 Dec. 1984, almost four years after the Supreme Court 21 Jan. 1981 decision in his denaturalization suit. A Soviet Court sentenced him to death in the summer of 1986.
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